Is It Possible to Contest a Will?

Imagine your surprise when a parent or close loved one dies and, in their will, they have mysteriously left everything to a random person that you and your family barely know. Can the will be contested and ultimately proven invalid if you believe this to be a mistake or an intentional act of fraud?

Why a Will Can Be Contested

While wills can be contested, it is a lengthy and costly aspect of probate that should only be undertaken if you truly believe something is wrong. In Texas, there are generally four reasons why a will can be contested:

1. Lack of Testamentary Capacity

In some cases, the writer of a will (the testator) may not have realized that they were even signing a will in the first place due to a lack of mental capacity. They may not have realized that the document they were signing was indeed a will, or that the terms may have been changed to award property to those who were not meant to receive it in the first place.

In these cases, a lack of testamentary capacity can be alleged by those who are contesting the will to show that the testator did something contrary to their own interests due to lack of testamentary capacity. Contesting parties must show that the will was written or signed at a point where they did not understand what they were doing, and must also demonstrate that the will would have been different had the testator been of sound mind.

2. Undue Influence

Undue influence occurs when a third party attempts to persuade the testator to do something they would not naturally want to do by means of blackmail, extortion or behavior such as manipulation. For example, an older testator may have been pressured by a caretaker to change their will to benefit the caretaker under the threat of withholding necessary treatment.

In order to contest a will under the grounds of undue influence in a Texas probate court, it is the burden of the contesting parties to prove, by a preponderance of the credible evidence that an individual worked to pressure, manipulate or coerce the testator into making changes to the will that overpowered their natural choice and would not have been made without influence of the third party.

3. Due Execution

In order for a will to be valid in Texas, the Will must be (1) in writing; (2) signed by (a) a testator in person or (b) another on behalf of the testator (i)in the testator’s presence and (ii) under the testator’s direction and finally (3) it must be attested to by two or more credible witnesses who are at least 14 years old and who sign their names to the will in their own handwriting in the testator’s presence.

In Texas, holographic (handwritten) wills may be accepted in some cases, but in general, a will can be contested if it lacks essential elements of a valid will. A holographic will is a will that is written wholly in the testator’s handwriting. Subscribing witnesses are not necessary for a holographic will.

4. Legal Non-compliance

Because a will is a legal document, they are subject to laws and requirements in specifics in how they are to be drafted, handled and executed. If this is absent from the will, then part or all of it may be thrown out upon further investigation.

If you believe that a will left by a loved one is noncompliant with Texas law, an experienced Texas probate attorney can help you determine the legal grounds to challenge a will.

Who Can Contest a Will?

A person interested in an estate may, at any time before the court decides an issue in a proceeding, file written opposition regarding the issue. An “interested person” means an heir, devisee, spouse, creditor or any other having a property right in or claim against an estate being administered. According to Texas law, an individual who contests a will is allowed to submit evidence and call witnesses and to be heard on the opposition, as in other suits, as necessary in order to make their case.

Contact an Experienced Probate Attorney

If you wish to contest a will, it is best to do so as soon as possible after the probate process begins. An “interested person” may commence a suit to contest the validity of a Will not later than the second anniversary of the date the will was admitted to probate, except that an “interested person” may commence a suit to cancel a will for forgery or other fraud not later than the second anniversary of the date the forgery or fraud was discovered.

Contesting a will is a complex legal endeavor that will require time, energy and money in order to do so successfully. For more information about contesting a will or to discuss a claim with an experienced probate attorney, contact us today to schedule a free consultation.